Bencs (Migration)

[2023] AATA 1125

Bencs (Migration) [2023] AATA 1125 (24 April 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Alexander Bencs

VISA APPLICANT:  Ms Kanchayakon Chanthawong

CASE NUMBER:  2303704

HOME AFFAIRS REFERENCE(S):          BCC2022/1702200

MEMBER:Justine Clarke

DATE:24 April 2023

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal does not have jurisdiction in this matter.

Statement made on 24 April 2023 at 12:50pm

CATCHWORDS
MIGRATION – Partner (Temporary) (Class UK) visa – Subclass 820 (Partner) – review application lodged out of time – No jurisdiction

LEGISLATION
Migration Act 1958 (Cth), ss 65, 347, 494C
Migration Regulations 1994 (Cth), r 4.10

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. On 15 March 2023, the review applicant lodged with the Tribunal an application for the review of a decision of a delegate of the Minister for Home Affairs made on 1 February 2023 to refuse to grant the visa applicant a Partner (Temporary) (Class UK) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. For the following reasons, the Tribunal has found that it has no jurisdiction to review the decision.

3. Pursuant to s 347(1)(b) of the Act and reg 4.10 of the Migration Regulations 1994 (Cth) (the Regulations), an application for review of this decision had to be made within 21 days after the applicant was notified of the decision in accordance with the statutory requirements.

4. The material before the Tribunal indicates that the applicant was notified of the decision by letter dated 1 February 2023 and dispatched by email. The Tribunal is satisfied that the applicant was notified of the decision in accordance with the statutory requirements.

5. On 16 March 2023, the Tribunal sent a letter to the review applicant, by email, inviting him to comment on the validity of the review. The letter included the following:

   I am of the view that your application is not a valid application as it was not lodged within the relevant time limit. The time limit is 21 days from the day on which Ms Kanchayakon Chanthawong is taken to have been notified of the primary decision. The primary decision was emailed to Ms Kanchayakon Chanthawong on 1 February 2023 and, on the basis that 1 February 2023 was the date on which Ms Kanchayakon Chanthawong is taken to have been notified, the last day for lodging the application for review was 22 February 2023. As the application was not received until 15 March 2023, it appears to be out of time. I am also of the view that your application is not a valid application as the application fee has not been paid.

   Furthermore, in order to have made a valid application, Ms Kanchayakon Chanthawong must have been in Australia at the time the application was lodged with the Tribunal on 15 March 2023. It appears that Ms Kanchayakon Chanthawong was not in Australia on that date, and I am therefore of the view that your application is not a valid application.

   However, these are matters which must be determined by a Member.

6. The letter requested any comments to be provided in writing by 30 March 2023.

7. To date, the Tribunal has not received a response.

8. The Tribunal finds that the applicant is taken to have been notified of the decision on 1 February 2023: s 494C of the Act. Therefore, the prescribed period to apply for review ended on 22 February 2023. As the application for review was not received by the Tribunal until 15 March 2023, it follows that the application for review was not made in accordance with the relevant legislation and the Tribunal has no jurisdiction in this matter.

   DECISION

9. The Tribunal does not have jurisdiction in this matter.

   Justine Clarke
   Member